Thursday, 19 March 2015

The UK implements EU free movement law – in the style of Franz Kafka

Steve Peers

Most laws are complicated enough
to start with, but with EU Directives there is an extra complication – the
obligation to transpose them into national law. A case study in poor
transposition is the UK’s implementation of the EU’s citizens’ Directive,
which regulates many aspects of the movement of EU citizens and their family
members between EU Member States. Unfortunately, that defective implementation
is exacerbated by a further gap between the wording of this national law and
its apparent application in practice, and by the unwillingness of the EU
Commission to sue the UK (or other Member States) even for the most obvious
breaches of the law.

It’s left to private individuals,
who usually have limited means, to spend considerable time and money challenging
the UK government in the national courts. One such case was the recent victory
in McCarthy (discussed here),
concerning short-term visits to the UK by EU citizens (including UK citizens
living elsewhere in the EU) with third-country (ie, non-EU) family members.The UK government has just amended the
national rules implementing the EU citizens’ Directive (the ‘EEA Regulations’)
to give effect to that judgment – but it has neglected to amend the rules
relating to another important free movement issue.

Implementing the McCarthy
judgment

The citizens’ Directive provides
that if EU citizens want to visit another Member State for a period of up to
three months, they can do so with very few formalities. However, if those EU
citizens are joined by a third-country family member, it’s possible that this
family member will have to obtain a short-term visa for the purposes of the
visit. The issue of who needs a short-term visa and who doesn’t is mostly left
to national law in the case of people visiting the UK and Ireland, but it’s
mostly fully harmonised as regards people visiting all the other Member States.

Although the EU’s citizens’
Directive does simplify the process of those family members obtaining a visa,
it’s still a complication, and so the Directive goes further to facilitate free
movement, by abolishing the visa requirement entirely in some cases. It
provides that no visa can be demanded where the third-country family members
have a ‘residence card’ issued by another EU Member State. According to the
Directive, those residence cards have to be issued whenever an EU citizen with
a third-country family member goes to live in another Member State – for
instance, where a British man moves to Germany with his Indian wife.
Conversely, though, they are not issued where an EU citizen has not left her
own Member State – for instance, a British woman still living in the UK with
her American wife.

How did the UK implement these
rules? The main source of implementation is the EEA Regulations, which were
first adopted in 2006, in order to give effect to the citizens’
Directive by the deadline of 30 April that year. Regulation 11 of these
Regulation states that non-EU family members of EU citizens must be admitted to
the UK if they have a passport, as well as an ‘EEA family permit, a residence
card or a permanent residence card’. A residence card and permanent residence
card are creations of the EU Directive, but an ‘EEA family permit’ is a
creature of UK law.

While the wording of the
Regulation appears to say that non-EU family members of EU citizens have a
right of admission if they hold any of these three documents, the UK practice
is more restrictive than the wording suggests. In practice, having a residence
card was usually not enough to exempt those family members from a visa
requirement to visit the UK, unless they also
held an EEA family permit. Regulation 12 (in its current form) says that the
family member is entitled to an EEA family permit if they are either travelling
to the UK or will be joining or accompanying an EU citizen there. In practice,
the family permit is issued by UK consulates upon application, for renewable periods
of six months. In many ways, it works in the same way as a visa requirement.

An amendment to the
Regulations in 2013 provided that a person with a ‘qualifying EEA State residence
card’ did not need a visa to visit the UK. But only residence cards issued by
Germany and Estonia met this definition. This distinction was made because the
UK was worried that some residence cards were issued without sufficient checks
or safeguards for forgery, but Germany and Estonia had developed biometric
cards that were less likely to be forged.

In the McCarthy judgment, the CJEU ruled that the UK rules breached the EU
Directive, which provides for no such thing as an EEA family permit as a
condition for admission of non-EU family members of EU citizens with residence
cards to the territory of a Member State. The UK waited nearly three months
after the judgment to amend the EEA Regulations to give effect to it.

The new amendments cover many
issues, but to implement McCarthy
they simply redefine a ‘qualifying EEA State residence card’ to include a
residence card issued by any EU Member State, as well as any residence card issued
by the broader group of countries applying the EEA treaty; this extends the
rule to cards issued by Norway, Iceland and Liechtenstein. Presumably this
brings the rules into compliance with EU law on this point (the new rules apply
from April 6th). That means that non-EU family members of EU citizens will not
need a visa to visit the UK from this point, provided that they hold a residence
card issued in accordance with EU law, because they are the non-EU family
member of an EU citizen who has moved to another Member State. However, this
depends also on the practice of interpretation of the rules, including the
guidance given to airline staff.

‘Surinder Singh’ cases

On the other hand, the new
Regulations do not implement other
recent CJEU case law (discussed here) on what is known in the UK as the ‘Surinder
Singh’ route. This is based on CJEU rulings which state that an EU citizen who
moves to another Member State with non-EU family members can then return to his
or her home Member State and invoke EU free movement law to ensure that this State
admits his or her family members. The purpose of doing this is to avoid very
restrictive rules on the admission of family members of British citizens into
the UK, which are much more stringent than the EU free movement rules (Danish
and Dutch citizens also use these rules).

The 2013 amendments to the
Regulations state that this route can only be used where the ‘centre of life’
of the family concerned has shifted to another Member State. This is
inconsistent with last year’s CJEU ruling, which requires only a three-month
move to another Member State to trigger the rules. In practice, this test is
then applied before an ‘EEA family permit’ is issued to the family member
concerned, which allows that family member to reside in the UK with the UK citizen.

Since these parts of the
Regulations have not been amended, and there is still provision for an ‘EEA
family permit’ in the Regulations, presumably the intention is to continue to
apply these rules to regulate the longer-term stay of UK citizens’ family members
using the Surinder Singh route.

Conclusion

The better course from the outset
for the UK would have been to avoid the creation of the ‘EEA family permit’,
which is not provided for in any EU legislation or hinted at in any CJEU case
law. Furthermore, not only do the UK rules not implement EU law correctly, they
also are not applied in practice exactly as they are written, but on the basis
of a general unwritten understanding about what they actually mean. This doesn’t
even deserve to be called a ‘policy’. Instead, the best description comes from Yes, Minister: it’s the ‘policy of the
administration of policy’.

6 comments:

Ireland still subject me to apply for 3 months EEA family permit even though I have a Romanian residence card with the observation: 'Family Member of a Romanian citizen'. When I wrote to the EU commission and Irish Ministry of Justice & Equality?, they said if my card would have read: Family Member of an European Union Citizen, they would have allowed me to travel to Ireland without EEA Family permit visa. My question is: Is a Romanian citizen not an European union citizen and vice versa? All Non-EU family members of EU family seems very very helpless and our EU Treaty Rights is not respected at all. Pathetic.

The EU free movement law only requires waiver of a visa (leaving aside travel between Schengen countries) if the person concerned is the family member of an EU citizen *who has moved to another Member State*. If you are the family member of a Romanian citizen living in Romania, then the free movement law does not require a visa waiver. If you are talking about longer-term stay, then the CJEU has not ruled directly on that point yet.

The EU Commission can sue any Member State for breaching EU law. It has published reports detailing how many Member States (not just those two) breach the Directive, but has not taken any action and unfortunately there is no way to make it do so.

Steve, I have a confusion; could please clarify it for me? You say that UK implemented McCarthy redefining a ‘qualifying EEA State residence card’ to include a residence card issued by any EU Member State. My understanding is that Mr McCarthy is British. Doesn't this condition make him qualify under Surinder Singh since he and his family live in Spain exercising treaty rights? If so, why McCarthy ruling is considered to have been a victory if his wife (and any spouse of a Brit exercising treaty rights in a EEA Country) still can't got through UK Border Control easily unlike any other spouse of EEA-national in possession of an article 10 residence card?

He is British so is residing in Spain, so his non-EU wife should be able to obtain a residence card. In McCarthy the CJEU said that the fact that he seeks to visit his home country with non-EU family is irrelevant, the residence card still entitles her to be free of the 'family permit' rule or any visa. So that's clearly a victory.